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Social Media - Freedom of Expression or Crime?

So you are sitting in your lorry cab or office fed up with a certain transport manager or colleague. You decide to post an offensive message or comment via Twitter, text or Facebook. But, when do comments, banter, or insults cross the boundaries of acceptability and attract possible prosecution? When does something, however unwise or inappropriate it may be, lead to the possibility of a court appearance?

Some recent high-profile cases have led to arrests and prosecution and they do not just involve internet trolls who are responsible for particularly offensive material.

In order to address this, the Crown Prosecution Service (“CPS”) published guidelines for prosecutors in relation to the increasing number of complaints of crimes committed through communications via social media. As the use of social media has risen so has the number of criminal allegations. Police recorded 556 allegations in 2008 with 46 people charged, rising in December 2012 to 4908 allegations and 653 people charged.

But, just because an uncomplimentary remark is made does that make it a crime? The approach of the Association of Chief Police Officers is that it was important for Police to prioritise social networking crimes which “caused genuine harm” but also “we need to accept that people have the right to communicate even to communicate in an obnoxious or disagreeable way and there is no desire on the part of the Police to get involved in that judgement”

When is the law broken?

It is possible to sue in the civil courts to get damages (compensation) for defamatory remarks but this article concerns the criminal law i.e. the likelihood of prosecution.

The CPS approach is to concentrate on certain types of communications sent by social media as follows

credible threats of violence to the person or damage to property,

those which specifically target an individual or individuals; and may constitute harassment or stalking (Protection from Harassment Act 1997)

breaches of a Court Order;

communications, which do not fall in to any of the above categories, but are grossly offensive, indecent, obscene or false.

The CPS intends that the first three categories will be prosecuted robustly and will be perhaps easier to identify.

However the final category; i.e. those considered grossly offensive, indecent, obscene or false will attract a higher evidential threshold. This area deals with the boundaries of social comment, which, however unpleasant and disagreeable, should not attract the prosecution through the courts unless they go beyone acceptable levels.

An example of the problems in this area surfaced in the case of Paul Chambers who was prosecuted, for tweeting, “crap Robin Hood Airport is closed you’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high” when delayed at Robin Hood Airport in South Yorkshire. The Lord Chief Justice concluded that the message was not of a menacing character and allowed his subsequent appeal – but only after he had been convicted in the Magistrates Court and lost his Crown court appeal.

It is easy to see how the tweeter simply vented his feelings, without thinking any more of it; however, it led to prolonged proceedings. Further an incident of this nature can cause problems for an employee whose employer may be less than impressed by their conduct even if cleared of any criminal wrongdoing.

This contrasts with 24 year old Michaela Turner who received a suspended sentence for posting on Facebook, following the killing of Drummer Lee Rigby in Woolwich: “feeling like burning down some Mosques in Portsmouth anyone want to join me?”

The test for the prosecution will be whether threats are credible, and if they are not, an individual should not be prosecuted unless they form part of a campaign of harassment specifically targeting an individual. Aggravating factors making a prosecution more likely may relate to hostility or prejudice, and possibility of increased sentences for racial and religious aggravation.

What is fair comment?

Behaviour not considered to be harassment, threats of violence, or a breach of a court order, can also be regarded as communications which are grossly offensive, indecent, or false under the Malicious Communications Act 1988 or the Communication Act 2003, separate legislation.

It is these communications which draw the greatest debate in relation to freedom of speech - Facebook, Twitter, Linkedin and YouTube generate many hundreds of millions of communications every month. The European Convention on Human Rights (Article 10) protects not only speech which is well received and popular but also speech which is offensive, shocking or disturbing. The Lord Chief Justice summarised this saying “the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will”. Another law lord suggested: “The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates”.

Effectively banter, jokes and offensive comments in common usage, which are frequently spontaneous, will have to be judged in context when considering whether they should proceed to prosecution and will attract a high evidential standard for them to be proved, even when it is considered to be in the public interest. In considering whether a prosecution is necessary and proportionate expressed genuine remorse on the part of the offender may avoid a prosecution; swift and effective action taken by the suspect and or others, including service providers, to remove/block an offensive message may also assist. Also, if the communication is not intended for a wide audience or is not sent to the victim or target of the communication this may be mitigation.

Broadly speaking, prosecution is unlikely to occur if the content of the communication would not go beyond being conceivably tolerable or accepting in an open and diverse society upholding and respecting freedom of expression. The Prosecution will consider each case on its own facts and merits.

Different considerations will apply if there is a hate crime element, repetition of the offence or persistent use of the communication for the purpose of causing annoyance, inconvenience or needless anxiety to another. Also prosecution of children is unlikely given they may not appreciate the potential harm and seriousness and prosecution is also unlikely to be in the public interest.

Does and Don’ts

Do think of the impact of your words

Do think who is your audience

Do not post if it is grossly offensive, indecent, obscene or false

Do not post if words are menacing

Do not post if words are threatening

Assume anyone can and will read it!

THINK BEFORE YOU POST!

Tim Norris is a Solicitor with the Crime & Regulatory Law Department, at Woodfines Solicitors based in Cambridge 01223 411421 email: tnorris@woodfines.co.uk, (offices also at Milton Keynes, Bedford and Sandy).